Opinion
Argued and Submitted August 14, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Participant brought action to recover disability retirement benefits under Employee Retirement Income Security Act (ERISA) plan. The United States District Court for the Northern District of California, 2002 WL 1492137, Ronald M. Whyte, J., granted judgment in favor of plan administrator. Participant appealed. The Court of Appeals held that: (1) participant's claim was not timely under terms of plan, and (2) participant was not entitled to equitable tolling.
Affirmed. Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding.
Crisostomo G. Ibarra, San Francisco, CA, for Plaintiff-Appellant.
Donald B. Harden, Fisher & Phillips, Atlanta, GA, John F. Penrose, Fisher & Phillips, LLP, Oakland, CA, Robert J. Coursey, III, Fisher & Phillips, LLP, Atlanta, GA, for Defendant-Appellee.
Before REINHARDT and GRABER, Circuit Judges, and RHOADES, District Judge.
The Honorable John S. Rhoades, District Court Judge for the Southern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Plaintiff Phyllis Hunter ("Hunter") appeals from the district court's judgment denying Hunter's claims against Lockheed Martin Corporation ("Lockeed"), as Administrator and Fiduciary of the Lockheed Martin Corporation Retirement Plan, for ERISA disability retirement benefits.
Because Hunter has failed to meet her burden of providing " 'material, probative evidence, beyond the mere fact of the apparent conflict,' " tending to show that Lockheed's self-interest caused a breach of its fiduciary obligations to her, Lockheed's decision is reviewed for an abuse of discretion. Friedrich v. Intel Corp., 181 F.3d 1105, 1109 (9th Cir.1999) (quoting Atwood v. Newmont Gold Co., 45 F.3d 1317, 1323 (9th Cir.1995)). Under this standard, it is inappropriate to consider additional evidence outside the administrative record. See Thomas v. Or. Fruit Prods. Co., 228 F.3d 991, 997 (9th Cir.2000). Here, Lockheed had before it a claim that was filed in August 1998, approximately three and one-half years after the January 1995 deadline. Clearly, Lockheed did not abuse its discretion in determining that Hunter's claim was not timely filed under the terms of the plan.
Page 970.
Nor did Lockheed abuse its discretion in determining that Hunter's claim was not saved under the doctrine of equitable tolling. Assuming, without deciding, that the doctrine of equitable tolling applies in an ERISA action brought to recover benefits, no ground for such tolling exists on this record. Neither piece of evidence presented to the Administrative Committee establishes that Hunter experienced "extraordinary circumstances" that were sufficient in duration so as to make it impossible for her to file a claim within the two-year period, nor does Hunter's own testimony before the district court. See Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir.1999) (discussing grounds for equitable tolling in another context).
AFFIRMED.